4
Implementing Risk-Informed Practices

In this chapter the committee outlines practical approaches to implementing risk-informed practices for low-activity wastes (LAW). The committee found no quick or simple ways to change from the present waste-origin-based patchwork of practices that has evolved over 60 years to the risk-informed system described in Chapter 3. Changes will have to be accomplished within the framework of current laws, regulations, and the large financial investment in management infrastructure, including disposal facilities, that are now in place. The committee also noted the current initiatives from regulators and other organizations as well as the previous lack of success in substantially reforming the system through congressional mandates that are described in Chapter 2.

These considerations led the committee to conclude that gradual, stepwise implementation of risk-informed practices is the best way to proceed. Implementation will require the participation of regulators, waste generators and facility operators, and public stakeholders. Overall, the committee’s implementation strategy set forth in this chapter is based on regulatory agencies acting primarily under their existing legal authorities, private industry adopting risk-informed waste practices as good business, and public stakeholders engaging objectively in the decision-making process.



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Improving the Regulation and Management of Low-Activity Radioactive Wastes 4 Implementing Risk-Informed Practices In this chapter the committee outlines practical approaches to implementing risk-informed practices for low-activity wastes (LAW). The committee found no quick or simple ways to change from the present waste-origin-based patchwork of practices that has evolved over 60 years to the risk-informed system described in Chapter 3. Changes will have to be accomplished within the framework of current laws, regulations, and the large financial investment in management infrastructure, including disposal facilities, that are now in place. The committee also noted the current initiatives from regulators and other organizations as well as the previous lack of success in substantially reforming the system through congressional mandates that are described in Chapter 2. These considerations led the committee to conclude that gradual, stepwise implementation of risk-informed practices is the best way to proceed. Implementation will require the participation of regulators, waste generators and facility operators, and public stakeholders. Overall, the committee’s implementation strategy set forth in this chapter is based on regulatory agencies acting primarily under their existing legal authorities, private industry adopting risk-informed waste practices as good business, and public stakeholders engaging objectively in the decision-making process.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes IMPLEMENTING RISK-INFORMED PRACTICES THROUGH THE REGULATORY SYSTEM The committee in its interim report found that current statutes and regulations for LAW provide adequate authority for protection of workers and the public. In seeking to provide practical advice for implementing risk-informed LAW practices, the committee suggests a four-tiered approach that is within these existing authorities of regulatory agencies, except for targeted congressional action at the highest tier. Steps in this approach are organized in increasing order of complexity and the time and resources needed to make changes. The committee judges that much can be accomplished by using the simpler approaches first. As knowledge, experience, and comfort that “yes this is the right thing to do” build among all stakeholders, changes may be extended or institutionalized at higher tiers. However, more complex problems may require that solutions originate at the higher tiers. This conclusion can be reached effectively by carefully examining options at the lower tiers. The committee distinguishes the tiered approach, which is a gradual or stepwise implementation of risk-informed practices, from the current patchwork system of regulation.1 Every regulatory change under the tiered approach would be made with regard to the inherent hazard of the waste in question and how its hazard compares to the hazards of other waste materials.2 The tiered system is a means of implementing changes at an appropriate regulatory level and always with a specific direction—a vector—that would eventually lead to a fully risk-informed system as envisioned in Chapter 3. The current origin-based patchwork does not provide this consistency. A Tiered Approach Toward Risk-Informed LAW Practices With this perspective, the committee sets forth a four-tiered approach that uses Changes to licenses and permits of individual waste generators or disposal facility operators seeking solutions for specific wastes, waste streams of a given type, or unique wastes that are infrequently generated. 1   Such a stepwise approach is consistent with other National Academies advice on managing high-level waste and spent nuclear fuels (NRC, 2001c, 2003b). 2   While the committee included only radiological hazard in its deliberations, other hazardous properties of the waste could be included in the approach being recommended here. The connection between inherent hazard of a material and the risks it poses for handling, storage, and disposal is spelled out in Chapter 3.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes Changes to guidance documents issued by federal and state agencies that provide interpretations and technical resolutions for specific regulatory issues. This may require the development of Memoranda of Understanding (MOUs) to better align and clarify requirements where there is a shared regulatory responsibility among agencies. Furthermore, agency-specific guidance may be required for management of LAW where one agency has clear and sole authority. Changes to regulations that more formally codify requirements for specific management practices and are promulgated by federal or state agencies under their legislated authority. Legislative changes to basic statutes or definitions that underlie existing laws, regulations, or authorities. The committee is not recommending the use of any one tier over another. Rather, the committee judges that all of the mechanisms alone, or in combination, provide an available and practical means for implementing risk-informed practices. The balance among the first three approaches is best determined by the agencies that have the authority for regulating LAW. Using case-specific approaches can provide timely and effective solutions, which in turn may pave the way to improved regulations or governing statues. To address an emerging issue, such as a new type of LAW, it might be most effective to begin with a specific license or permit change and move to higher tiers if warranted. A possible concern with the four-tiered “simplest is best” approach is that changes under existing regulatory authorities might be seen as attempts to avoid public input and scrutiny. The committee notes that the regulatory agencies, and Congress, require public hearings and other opportunities for stakeholder input before changes are made at any level among the four tiers. For each tier, the degree of stakeholder input is commensurate with the magnitude of the proposed change—although provisions for stakeholder input need to be improved as discussed throughout this report. By focusing on a waste’s actual hazard and potential risks of a proposed solution for dealing with that waste, rather than on regulatory complexities, risk-informed decision making within the four-tiered approach can increase the ability of public stakeholders to participate effectively. The Tiered Approach in Practice This section provides examples of how each tier of the four-tiered approach has been applied to manage and dispose of wastes in ways that appropriately recognize their radiological hazards. The examples demonstrate that implementing risk-informed changes at each tier can be accomplished recognizing the constraints of the current regulatory and

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Improving the Regulation and Management of Low-Activity Radioactive Wastes management infrastructure. Each tier provides a tool that can be used to implement risk-informed—not origin-based—regulations. Tier 1: Changes to licenses and permits of individual waste generators or disposal facility operators seeking solutions for specific wastes, waste streams of a given type, or unique wastes that are infrequently generated. Changes to license and permit conditions are generally considered a part of doing business in the commercial world. The following are two examples where risk considerations have allowed sites to accept additional types of wastes beyond the scope of their original permits or licenses. This flexibility has provided generators with disposal options that otherwise would not have been available and provided opportunities for significant cost reduction. US Ecology, a subsidiary of American Ecology Corporation, operates a state-permitted landfill near Grand View, Idaho, which was initially permitted to receive only Resource Conservation and Recovery Act (RCRA) Class C waste. A change in this site’s permit now allows the site to accept radiologically contaminated waste generated at a U.S. Nuclear Regulatory Commission (USNRC) or Agreement State licensed facility if the material has been specifically exempted from regulation according to a clearly described set of conditions. Wastes that may be accepted include Unimportant quantities of source material (i.e., less than 0.05 weight percent of uranium or thorium) uniformly dispersed in soil or other media, Naturally occurring radioactive material other than uranium and thorium uniformly dispersed in soil or other media, and Accelerator-produced radioactive material. To be disposed of at the site, wastes in these categories must meet well-defined acceptance criteria based on both concentration and total quantity of specific radionuclides. This permit change has expanded commercial options available to the Corps of Engineers for disposing of some of its FUSRAP (Formerly Utilized Sites Remedial Action Program) waste, and the site is now a major recipient of these wastes. Since 2001, US Ecology, Idaho, has disposed of about 460,000 m3 of FUSRAP waste and about 274,000 m3 of non-FUSRAP NORM (naturally occurring radioactive materials) waste from private-sector clients.3 3   Data provided in October 2005 by Simon Bell, US Ecology Idaho, Inc.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes Chem Nuclear/Duratek operates the Barnwell, South Carolina, disposal site, which is licensed by the state to receive USNRC Classes A, B, and C low-level waste (LLW).4 Since the site began commercial operation 1971, there have been a number of license changes that provide exemptions and/or special requirements to allow disposal of additional types of waste. Subject to very specific limitations, the Barnwell site’s license conditions now allow disposal of the following: Radioactive sources that exceed Class C concentration limits, but with strict limits on total radioactivity and packaging in high-integrity containers (see Sidebar 2.2); Radium wastes, including small discrete or diffuse sources, but not including bulk radium-bearing wastes such as uranium tailings; Gaseous wastes, including containers with up to 1000 curies of tritium, but internal pressure not exceeding 1.5 atmospheres; and Wastes that contain limited quantities of hazardous or toxic materials upon evaluation by the licensee and approval by the state. These changes were developed through risk-informed negotiation and discussions among the site operator, state regulators, and citizens of Barnwell County, South Carolina. The license changes have allowed the site to provide disposal capability for a variety of wastes for which other disposal options were much more expensive or not available. Tier 2: Changes to guidance documents issued by federal and state agencies that provide interpretations and technical resolutions for specific regulatory issues. This may require the development of MOUs to better align and clarify requirements where there is a shared regulatory responsibility among agencies. Regulatory agencies generally provide guidance that can be used to interpret an issue more broadly so that more than one licensee or permittee can use the guidance in carrying out their regulated activities. Guidance is often developed jointly by two or more agencies, which serves to demonstrate as well as enhance their cooperation. Under its authority to establish generally applicable radiation standards to protect the public and the environment, the Environmental Protection Agency (EPA) issues federal guidance for use by federal and state agencies. EPA guidance documents provide principles and policies for radiation protection, and EPA technical reports provide current scientific and technical information for radiation dose and risk assessment. In addition, EPA 4   South Carolina is a USNRC Agreement State.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes provides extensive guidance to help generators manage hazardous wastes that also contain radioactive materials (mixed wastes). The USNRC provides extensive guidance (Regulatory Guides and NUREGs) for licensees seeking to decommission nuclear facilities. Such guidance allows licensees to make technical and business decisions—for example, whether to decontaminate a building or to demolish it, or whether the resulting waste can be left on-site or must be shipped and disposed off-site. USNRC guidance for license terminations has been evolving since the late 1990s. The USNRC and EPA signed an MOU on decommissioning and decontamination of contaminated sites in 2002.5 Efforts to better risk-inform license terminations have continued with USNRC staff presenting an approach to classify restricted-use sites according to their residual risk using a graded approach.6 In addition, existing regulations in 10 CFR 61.58 authorize the USNRC to authorize approaches to waste classification as long as the principle protection requirements of 10 CFR Part 61 are met. Part 10 CFR 61.58 states: The Commission may, upon request or on its own initiative, authorize other provisions for the classification and characteristics of waste on a specific basis, if, after evaluation of the specific characteristics of the waste, disposal site, and method of disposal, it finds reasonable assurance of compliance with the performance objectives in subpart C of this part. This gives the USNRC significant authority and flexibility to use a risk-informed approach to waste classification, while maintaining public health and safety, for LLW or LAW. In 2000, the Secretary of the Department of Energy (DOE) placed a moratorium on the unrestricted release of volumetrically contaminated material from its site decommissioning and cleanup activities pending a USNRC decision on whether to establish national standards for unrestricted release. Although the moratorium is still in effect, DOE has drafted guidance on control and release of property with residual radioactive contamination (DOE, 2006). This guidance has assisted several sites in the disposition of slightly contaminated sediment and rubble. Multiagency guidance documents are also important mechanisms for implementing risk-informed practices and for demonstrating cooperation among agencies. The Multi-Agency Radiation Survey and Site Investiga- 5   The MOU between EPA and USNRC on site decommissioning is available at http://www.nrc.gov/reading-rm/doc-collections/news/2002/mou2fin.pdf. 6   See http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1757/s1/index.html.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes tion Manual (MARSSIM) is a consensus document that was developed collaboratively by DOE, EPA, USNRC and the Department of Defense over a period of approximately 10 years. MARSSIM’s objective is to “describe a consistent approach for planning, performing, and assessing building surface and surface soil final status surveys to meet established dose or risk-based release criteria, while at the same time encouraging an effective use of resources.” Tier 3: Changes to regulations that more formally codify requirements for specific management practices and are promulgated by federal or state agencies under their legislated authority. Examples of regulatory changes that can lead toward risk-informed LAW practices are the EPA’s Advance Notice of Proposed Rulemaking for disposing of certain wastes in RCRA Class C landfills and the USNRC’s proposed rule on alternative disposition pathways, both of which were discussed in Chapter 2. These proposed rules would increase the disposition options for very low activity wastes in a way that the committee judges to be risk-informed. The committee heard different opinions about the degree to which these agencies are committed to finalizing these rules and their eventual likelihood of success.7 Nonetheless, the committee endorses these efforts, and encourages the agencies to develop these or similar rules and changes to regulations. They are important attempts for regulatory agencies to use their existing authorities to implement risk-informed regulation. The EPA and USNRC have cooperated in the development of two other rules promulgated by EPA that the committee views as illustrative of movement toward risk-informed regulation. These rule changes eliminate complex dual-regulation of a variety of low-hazard mixed wastes. In 1998 EPA promulgated its Hazardous Waste Identification Rule for Contaminated Media (40 CFR Part 260). That rule eliminated certain types of mixed LLW from RCRA requirements for storage, transportation, and disposal if they were to be disposed in a USNRC-licensed facility. Subsequently, in 2001, EPA’s mixed waste rule (40 CFR Part 266) provided more flexibility to generators and facilities that manage mixed LLW, TENORM (technologically enhanced NORM), and/or accelerator-produced material by exempting them, according to certain conditions, from RCRA Class C requirements. If so exempted, those wastes must be managed as radioactive wastes in accordance with USNRC or Agreement State regulations. 7   The USNRC suspended its proposed rulemaking in mid-2005 due to higher priorities, see Chapter 2.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes Tier 4: Legislative changes to basic statutes or definitions that underlie existing laws, regulations, or authorities. While the committee sees neither the likelihood nor the need for Congress to develop sweeping new LAW legislation, there are clearly instances where specific, targeted legislative actions are helpful and perhaps required. Recent examples cited in Chapter 2 are the 2005 Energy Policy Act’s changes to the Atomic Energy Act’s (AEA’s) definition of byproduct materials. Those changes expand the AEA to provide federal authority to control discrete sources of 226Ra, accelerator-produced radionuclides, and other concentrated NORM sources so designated by the USNRC in consultation with EPA. The Energy Policy Act requires the USNRC and EPA to develop a definition of “discrete” sources—sources with sufficient concentrations of radioactivity to warrant federal control. In its interim report, the committee noted that these materials were inconsistently controlled by federal and state agencies. By placing the subset of materials with the highest concentrations of activity under AEA control—subject to USNRC licensing—the Energy Policy Act provided a significant legislative step toward risk-informed regulation. The subset of these wastes not designated as discrete sources (sometimes called “diffuse” sources), however, will remain under disparate controls as discussed in Chapter 2. Previously the committee noted that the definition of “low-level waste” in the Nuclear Waste Policy Act, which is reflected in the AEA, is not risk-informed. The definition is a “catchall” that includes AEA wastes that do not have another statutory definition (e.g., high-level waste, transuranic waste). New legislation would be required to change this basic definition, for example to allow very low activity wastes to exit the regulatory control system as discussed in Chapter 3. The committee judges that enacting such legislation is unlikely, and therefore encourages the Tier 3 initiatives described above and in Chapter 2. INDUSTRY’S NEEDS AND RESPONSIBILITIES FOR IMPLEMENTING RISK-INFORMED LAW PRACTICES As the previous section illustrates, a tiered approach can be adopted to improve the regulatory system for LAW. Regulators and public decision makers do not bear the full responsibility for moving toward risk-informed practices—the nuclear industry and other waste generators share this responsibility. This section discusses industry’s needs and responsibilities in implementing a risk-informed approach to LAW. Risk-informed practices are good business practices. By working with

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Improving the Regulation and Management of Low-Activity Radioactive Wastes regulators, public authorities, and local citizens to implement risk-informed practices, industry can increase the cost-effectiveness of its LAW disposal; increase its options for such disposal; and by moving away from the ad hoc nature of the current origin-based system, increase the predictability of its disposal options. Contemporary notions of regulatory effectiveness rely on a responsible regulated community working with regulators and involved publics. Under the system of command-and-control regulations that dominated through the mid-1980s, regulators and industry frequently played adversarial roles. A great deal of energy was consumed in challenging the regulatory system, resulting in inefficiencies when regulators specified technology solutions and in unpredictability when courts resolved disputes over compliance dates and other program features. With the general shift to more collaborative and market-sensitive regulatory strategies, the regulated community gains predictability and at the same time shares responsibility for taking actions that protect health and the environment. For the purpose of this discussion, “industry” includes any institution that takes actions to create, manage, or dispose of LAW that require regulatory approvals. Such an entity may be a for-profit corporation, a not-for-profit organization, or a government body. These entities, however diverse their structures may be, share some common needs in the regulatory process. Cost is of course a vital factor. Too-stringent regulations consume resources that could be employed to greater benefit elsewhere. Industry needs to be part of the process of making regulations, through dialogue with regulators both in the formulation stages and during the comment stages after new regulations are proposed. Organizations such as the Nuclear Energy Institute often provide a good mechanism for such dialogue. In a recent USNRC workshop on decommissioning, industry officials said they would like to see more flexibility in where to send their waste, consistency in regulations between the USNRC and EPA, and finality of closing a site once the required decommissioning work is complete. Fuel Cycle Facilities Forum Chairman David Culberson stated that “waste disposal is typically the largest single cost component of decommissioning, and frequently licensees are left with only one commercial disposal alternative. The industry would like to see more facilities available for disposal” (D&D Monitor, 2005, p. 6). Industries that generate LAW can take a series of actions that will facilitate and accelerate the transition to a risk-informed system. These actions are consistent with norms of institutional responsibility and based on general principles of transparency, accountability, and sustainability. They include the following:

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Improving the Regulation and Management of Low-Activity Radioactive Wastes The polluter pays, Minimize waste, Report to stakeholders, Invest in worker training and protection, Share best practices and lessons learned—negative as well as positive, Act in advance of regulatory requirements, Develop a sustainability strategy. The Polluter Pays In most countries, substantial efforts are taken to ensure that the costs of waste disposal are borne by the entities that produce the waste and are not subsidized by governments (citizens). This is referred to as the “polluter pays principle.” The increasing costs of sound disposal serve as a large incentive for organizations to make waste reduction efforts. Within U.S. corporations, steps have been taken to remove waste disposal from general overhead accounts and to allocate disposal costs to the business unit that produced the waste. Full cost accounting (sometimes called environmental full cost accounting or total cost assessment) is a management tool used by some companies to quantify the costs and then allocate them in a way that will best achieve the objective of reducing waste. This internal accounting strategy has been associated with substantial pollution prevention activity (Rondinelli and Berry, 2000). The costs of the DOE’s waste programs are borne by taxpayers. Nonetheless, public oversight of DOE’s budget provides incentives for cost-efficient LAW practices (GAO, 1999). Minimize Waste The polluter pays principle is credited with a range of actions that reduce the volume of waste. In the United States, the Pollution Prevention Act of 1990 identifies four categories of waste reduction: Equipment, technology, process, or procedure modifications; Reformulation or redesign of products; Substitution of raw materials; and Improvement in management, training, inventory control, materials handling, or other general operational phases of industrial facilities. There are many examples in which companies have made dramatic reductions in hazardous waste in each of the above categories, with benefits to worker health and the environment, and cost reductions to the generator. For example, 3M reports that in the last 30 years (1975-2005),

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Improving the Regulation and Management of Low-Activity Radioactive Wastes projects of this type have prevented 2.2 billion pounds of pollutants and saved the company nearly one billion dollars.8 Considerable effort has been invested in the development of decision-making tools, both technical (OTA, 1992; EPA, 1994, 1997) and financial (EPA, 1992), to facilitate pollution prevention practices. Waste minimization (practices to reduce the amounts of waste generated) and waste segregation (avoiding the mixing of less hazardous waste with more hazardous waste) have long been cornerstones of radioactive waste management (IAEA, 1987). The Government Accountability Office (GAO) report on waste disposal capacity in the United States (GAO, 2004) noted that waste generators are making concerted efforts to reduce waste volumes. Such techniques include substituting nonradioactive materials for radioactive materials, keeping nonradioactive wastes free from radioactive contamination, internal recycling, compaction, and incineration. According to GAO, some USNRC licensees have supercompacted Class A wastes to achieve up to a 500-fold reduction in volume or reduced combustible waste to ash through incineration. France, which like the United States does not allow free release (clearance) of very low activity waste from regulatory control, enforces strict zoning in nuclear facilities. The practice requires identifying “conventional waste zones,” where there are no radioactive materials, and “nuclear waste zones” in and around the facilities. Zoning helps ensure that conventional wastes are not contaminated by radioactive materials. Primary controls to ensure this segregation include the facility’s design, its operating procedures, and its history—including design modifications and operating incidents. Secondary controls include instrumentation to detect radioactivity in wastes exiting the conventional zones. Optionally, the conventional wastes may be measured again upon arrival at a disposal site for nonradioactive materials (Averous, 2003). Report to Stakeholders In the interest of transparency, many institutions make available extensive data on resource use and waste, often in the form of an environmental or sustainability report. Governments may require reporting of select industry activities related to the environment, however; many company stakeholders have expressed interest in having more information than required by government. Providing data that allow comparisons within industry sectors and from one sector to the next is an important element of transparency to 8   See “Pollution Prevention Pays” at http://solutions.3m.com/wps/portal/_l/en_US/_s.155/113842/_s.155/115848.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes many interested stakeholders. For example, the socially responsible investment community makes a range of data-driven decisions, and some investment firms select companies for their portfolios that are considered “best in class” using comparative data. In addition to a variety of external stakeholders with an interest in these data, the expectation is that responsible companies will use the data internally as they follow the adage of “managing what they measure” and reducing the risk associated with the waste they produce. Increasingly, institutions are implementing comprehensive environmental management systems such the Eco-Management and Audit System now required in the European Union and Japan, or ISO (International Organization for Standardization) 14000, a similar generic environmental management system. These systems have several elements, including commitments to continuing progress in pollution prevention and to reporting. Increasingly there is interest in establishing comprehensive environmental performance measurement schemes such as the Global Reporting Initiative, which will allow quantitative comparisons within sectors and across organizations; pollution prevention efforts are at the center of measurement schemes as well. Characterizing and reporting on LAW is consistent with several trends in corporate responsibility and can be accomplished without government regulatory action. Invest in Worker Training and Protection Industries that use materials or processes that are potentially hazardous to health and safety make significant investments in worker training and protection to safeguard their human resources and reduce lost time associated with accidents. Responsible industries invest in more comprehensive worker training; instead of simply protecting against losses, expanding training can result in savings. Many of the waste minimization savings cited above are the result of personnel, often working in teams, trained to identify pollution prevention opportunities and to experiment with process modifications. In a risk-informed system for managing LAW, responsible institutions will examine their worker training protocols to determine whether they are sufficient both to protect against losses and to increase the likelihood of generating savings. Share Best Practices Sharing best practices among organizations in the same industry sector and across sectors is an approach that is used to accelerate the rate of technology transfer and to address stakeholder concerns. Global organizations such as the World Business Council for Sustainable Develop-

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Improving the Regulation and Management of Low-Activity Radioactive Wastes ment and the World Association of Nuclear Operators emphasize sharing knowledge among member institutions and, through their publications, share information with a wide range of other organizations. Programs within industry sectors, such as the chemical and nuclear industries, emphasize sharing best practices for the additional reason that an incident involving a single facility may have negative repercussions for the industry as a whole. Industries generating LAW will benefit from sharing a range of best practices, including waste characterization and waste minimization techniques. Act in Advance of Regulatory Requirements Institutions have articulated several reasons for acting in advance of regulatory action, including Enhanced reputation among customers and other stakeholders; Greater control over timing of action, particularly when capital investments are required; and Increased likelihood that when regulations are implemented, regulators will codify elements of successful practice, conferring a competitive advantage on the organizations already following those practices. Many companies using and producing ozone-depleting chemicals acted in advance of the deadlines established for substance phaseout in the Montreal Protocol. For example, several companies that used ozone-depleting chlorofluorocarbons (CFCs) for cleaning found that substitute processes that used water or abrasive beads were less costly than the chemicals they had been using. DuPont, a major producer of CFCs, also had invested in research on alternatives. These factors, along with considerable public concern about the predicted effects of ozone layer depletion, contributed to a situation in which acting in advance of regulatory requirements was a prudent and responsible course of action for many companies. In a risk-informed system for managing LAW, there will be changes in the degree of regulatory oversight experienced by different industry sectors. For those sectors in which the current patchwork system creates gaps that will be filled by regulatory action in a risk-informed system, acting in advance of government requirements may be a valuable strategy for generators of LAW. Develop a Sustainability Strategy Increasingly, institutions are taking concerns for sustainability into account as they develop their long-range strategies. The specifics will vary

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Improving the Regulation and Management of Low-Activity Radioactive Wastes dramatically depending on the nature of the industry, ranging from changes in the business model to making a transition from one business to another. Two companies that are associated with changes to their business model are Interface Carpet and Xerox. In response to concerns about the amount of carpeting disposed in landfills, Interface took a number of actions, including development of a product that used recycled fiber, and began to offer carpet in the form of tiles so that only the worn portions could be replaced. Following these actions, Interface began experimenting with the idea of renting carpet rather than selling it to consumers. The rental concept is a form of product stewardship, ensuring the company a stock of used carpet to recycle. Along similar lines, Xerox several years ago began to increase the recycled material content of its copying machines. The goal was to minimize the amount of material ultimately disposed to land. In the first year of its program the company saved more than $50 million by modifying logistics, inventory, and material purchases (Murray and Vietor, 1995). Companies generating large volumes of LAW may use sustainability considerations as motivators for development of new business models or as the rationale for a transition from one business to another. Reasons for considering sustainability as a critical element in long-term strategy include the reasons cited above for acting in advance of government regulation along with an added element: product differentiation. Conclusions About Industry’s Needs and Responsibilities Responsible actions by industry can accelerate the implementation of a risk-informed system for LAW, particularly if institutions act in advance of regulatory action. As the examples offered in this section indicate, there are cases in which responsible actions by industry have resulted in tangible benefits, including Enhanced reputation among customers; Reduced costs of operations; and Reduced costs of disposal. The committee judges that risk-informed practices are good business practices. By working with regulators, public authorities, and local citizens to implement risk-informed practices, industry can increase the cost-effectiveness of its LAW disposal; increase its options for such disposal; and by moving away from the ad hoc nature of the current origin-based system, increase the predictability of its disposal options. Given the degree of public concern associated with radioactive waste, institutions taking

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Improving the Regulation and Management of Low-Activity Radioactive Wastes responsible actions related to their LAW also may experience an enhanced public image. PUBLIC STAKEHOLDER INTERACTIONS IN IMPLEMENTING A RISK-INFORMED DECISION-MAKING PROCESS Implementing a risk-informed decision process that involves significant public stakeholder participation is not an easy task for several reasons. First, the issues associated with LAW are complex and controversial. Most members of the public see radiation risks from a narrow frame of fear and danger, as described in Chapter 3. Second, despite the efforts of various government agencies to include public stakeholders in decision making, many members of the public are distrustful of these agencies. Consequently, establishing a truly effective public participation process is often difficult. Third, many members of the public and public stakeholder groups have a difficult time understanding the strange and convoluted regulatory system this nation uses for LAW. It does not engender public trust and confidence. In parallel with the previous section’s discussion that risk-informed practices are good business practices, this section develops the thesis that risk-informed practices provide effective new opportunities for involving stakeholders and reducing mistrust. Currently there are a number of LAW issues that worry public stakeholders, and any action that appears to lessen regulatory control of low-level radioactive wastes is a major one. In a March 2005 petition, representatives of Public Citizen, the Sierra Club, Physicians for Social Responsibility, Friends of the Earth, Greenpeace, and other organizations and individuals urged the USNRC to hold a public meeting on the proposed rulemaking for alternative dispositions of slightly radioactive wastes (the proposal is discussed in Chapter 2). The petition sought an opportunity for representatives from their stakeholder community to testify to the commissioners about why the USNRC should not proceed with its staff’s proposal to “deregulate significant portions of the ‘low-level’ radioactive waste stream, permitting licensed nuclear material to go to unlicensed sites such as local municipal garbage dumps, hazardous waste sites, and recyclers for use in consumer goods and construction material” (Public Citizen, 2005). One part of this very controversial issue is what to do with very low level radioactive wastes from decommissioned nuclear plants. Placing such wastes into a landfill has been done successfully with community involvement and negotiation at Big Rock Point in Michigan, but there are citizens in California and elsewhere who oppose such a possibility (Lucas, 2002). Citizen concerns with the USNRC’s proposed rulemaking evidently

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Improving the Regulation and Management of Low-Activity Radioactive Wastes were heard and played a role in its decision to defer further action. In voting to disapprove the rulemaking in June 2005, USNRC Chairman Diaz noted that there had been multiple public workshops and public meetings to obtain a range of stakeholders’ views. He said the decision-making process for the proposed rule was open and reflected “extensive stakeholder input from citizens and environmental groups, metals and concrete industries, nuclear industry representatives and other state and federal agencies, representing a broad-based and diverse set of views.” He called this process “enhanced participatory rulemaking” (Diaz, 2005b). Another concern relates to the exclusion of interested publics, but not affected publics, from the siting process of an LLW repository in Texas.9 According to testimony by Dr. Melanie Barnes (2003), representing the League of Women Voters of Texas: “There has been no public discussion by the citizens of Texas about the disposal of federal low-level radioactive waste in Texas. In fact, the current wording of these bills10 diminishes the right of the public to be involved or even informed by restricting public involvement to those residing in the county where the proposed waste disposal facility would be located. Why should a few citizens be allowed [to] make such a complex and long-lasting commitment for all the citizens of Texas?” For technical professionals, it is very sensible to regulate LAW based on the hazards posed by type and level of activity rather than by generator. Further, it is logical to use a single set of radiation protection criteria to protect people in all states and countries. The committee nevertheless recognizes the difficulties that will arise if changes in the current system appear to reduce regulatory controls. Citizens of a state with stricter standards may be unwilling to accept less stringent federal statutes. Similarly, on a larger scale, the U.S. public may be unwilling to accept less stringent international statutes of the European Union or the International Atomic Energy Agency. People who are aware of the linear, no-threshold model (NRC, 2005a) may be less likely to accept rules that might increase their potential exposure, even if officials in Washington or Vienna assure them that the risks are insignificant. These concerns are of major importance politically and socially. They are part of the cultural rationale that heavily influences how stakeholders respond to governmental and nuclear industry actions regarding LAW. 9   NRC (1996) defined “affected parties” as people, groups, or organizations that may experience benefit or harm as a result of a hazard, or of the process leading to risk characterization, or of a decision about risk. “Interested parties” were defined as people, groups, or organizations that decide to become informed about and involved in a risk characterization or decision-making process (and who may or may not be affected parties). See Chapter 3. 10   SB824 and HB 1567.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes As noted in the Risk Commission report discussed in Chapter 3, stakeholders need to be involved early and to be central in any decision-making process. Developing a risk-informed approach to decisions about LAW will ensure that stakeholders are involved early and remain at the center of the decision-making process. Currently, there are a number of public outreach programs in the federal government to gather information about nuclear issues from, and provide it to, public stakeholders, although not all of them put stakeholders in a central decision-making role. According to the USNRC (2002, p. 1), the commission “has long recognized the importance and value of public communication and involvement as a key cornerstone of strong, fair regulation of the nuclear industry.” The USNRC has developed three categories for public meetings to inform citizens and listen to public comment. In Category 1, the most limited category, the public can observe the USNRC’s interactions with licensees and offer constructive comments. In Category 2, public interest and citizens groups can participate in meetings with groups of industry representatives, licensees, and vendors, providing opportunities for the public not only to observe and obtain factual information but also to provide feedback on issues, alternatives, and decisions. Category 3 meetings “provide an opportunity for NRC and the public to work directly together to ensure that the issues and concerns are understood and considered by USNRC” (USNRC, 2002, p. 6). Examples of the latter types of meetings are town halls or roundtable discussions, environmental impact statement scoping meetings, and proposed rulemaking meetings. A number of other examples of public outreach concerning nuclear issues exist. The Hanford Thyroid Disease Study conducted by the Fred Hutchinson Cancer Research Center and sponsored by the U.S. Centers for Disease Control and Prevention had a public advisory board and also a health information network to keep the public informed by means of a website and newsletters during the nine-year study (Friedman, 2001). EPA in its recertification program for the Waste Isolation Pilot Program (WIPP) in New Mexico has many fact sheets for the public on a special website as well as a special WIPP information telephone line and a listserv. On its website, it has a quick guide to public outreach activities, both what it is doing to let the public know what is happening and what the public can do to provide information and feedback to EPA (EPA, 2005a,b). To prepare for the recertification process, EPA commissioned an outside evaluation of its earlier WIPP public certification outreach program to identify its strengths and weaknesses and lessons learned. Among many findings were that “EPA far exceeded regulatory requirements for

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Improving the Regulation and Management of Low-Activity Radioactive Wastes public outreach and performed many of the elements of its public outreach program extremely well…. However, the restrictions placed on EPA as part of its regulatory rulemaking process prevented it from fully achieving its stated commitments under its public outreach program…. EPA was unable to involve the public in the key aspects of the decision-making in which they were most interested” (Phoenix Environmental, 2001). During the WIPP recertification process, EPA has been working with stakeholders to address their concerns. For example, Citizens for Alternatives to Radioactive Dumping and the Loretto Community believed that the geologic characterization of the subsurface surrounding the WIPP repository did not adequately identify the presence of karst.11 As a result of these concerns, EPA agreed to reevaluate the potential for the presence of karst at WIPP and the possible impacts of the long-term containment of waste for WIPP (EPA, 2005a). Some countries in Europe have also enabled stakeholders to participate in radiation decision-making procedures. In France in the late 1990s, when results from epidemiological studies raised causal questions about cases of leukemia in residents living in the vicinity of La Hague, a nuclear reprocessing plant, a group of stakeholders, including members of the public, were brought together to review the situation. In Sweden, a site investigation for developing a high-level nuclear waste repository has carefully taken into account local stakeholder concerns and positions. At one potential site in Oskarshamn, already the home of a nuclear power plant, Mayor Torsten Carlsson said that there had been an open and participatory process with the community and SKB, a company owned by nuclear power plant operators that is responsible for investigating potential repository sites. Final site approval will be in the hands of both the national government and the municipality. Public engagement has been important and SKB representatives have come to meetings of local clubs and groups. Citizen and environmental group participation has been encouraged, and high school students have even been asked their opinions on nuclear waste issues. Said the mayor: “We [citizens] build competence so we can ask the difficult questions. We ask until we get clear answers. We make them [SKB] translate their technical reports” (Carlsson, 2002). Formalizing this requirement in its document granting permission for a site investigation, the Municipality of Oskarshamn noted that “the authorities as well as SKB must deepen their dialogue with the citizens in order that their issues should guide 11   Karst is a type of geology in which there are numerous sinkholes and large voids such as caves.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes regulations and safety analyses. These areas must not be reserved for the authorities’ and SKB’s experts” (Oskarshamn, 2003, p. 1). The European Community also supports projects aimed at improving stakeholder involvement in decisions or improving their expertise concerning radioactive risks. One of these projects, Community Waste Management (COWAM),12 has led to a European network of local stakeholders concerned about radioactive waste management. The initial objective of COWAM was “to contribute to the improvement of the quality of decision making at the local level in nuclear waste management. The purpose was not to determine which technical option is the best for a particular type of waste, but to discuss the quality of the decision-making process from the local level viewpoint.” In creating a network of local people from communities involved in nuclear waste management, COWAM wanted to contribute to the people’s empowerment. Network members exchange information about their experiences to analyze local involvements in national decision processes and issue recommendations for improving those processes. Besides outreach, another way in which a few government organizations in Europe and the United States have helped public stakeholders become more central in risk decision-making processes is by helping them hire their own technical experts. For example, experts from the United Kingdom and other countries traveled to Oskarshamn, Sweden, to advise and review issues with the municipality and with citizens (Carlsson, 2002). In the United States, the Office of the U.S. Nuclear Waste Negotiator, which operated under congressional authority as an independent agency from 1990 to 1995 to solicit volunteer localities to host temporary or permanent commercial spent fuel sites, made grants of up to $100,000 to public groups to hire experts and perform self-directed studies of the science and potential risks related to such facilities. Despite these public-centered activities, at least in the United States there is still skepticism among citizens about how seriously their concerns are regarded by government and nuclear industry officials—that is, how central they really are to the decision-making process. Some people consider many public meetings and outreach efforts “sham procedures,” with public concerns about radiation doses, among other things, not taken seriously. While public meetings are often good for sharing information and hearing public comment, they often are not the most effective method for involving citizens and stakeholders in a decision-making process, according to a meta-analysis of 239 public participation case studies (Beierle and Cayford, 2002). Citizens’ frustration at not having their 12   See http://www.cowam.com/rubrique.php3?id_rubrique=12.

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Improving the Regulation and Management of Low-Activity Radioactive Wastes opinions count in the decision-making process often leads to lowered levels of public trust, as discussed in Chapter 3. Making efforts to limit citizen participation by rules, such as in the case of the Texas League of Women Voters, only adds to the loss of public trust. While a risk-informed system might not solve all the problems involved in LAW public participation efforts, offering public stakeholders’ a central role early in the decision-making process should increase trust and add important dimensions to public input into radiation decision making. A risk-informed system by its very definition would ensure that more information than just scientific risk assessment would be used when evaluating LAW issues. It should give members of the public more confidence that their voices will be heard in this process. However, to truly engage the public and enable its trust, a risk-informed system would have to show that inputs from public stakeholders would be a part of the decision-making process and be taken into account seriously despite potential problems with technical versus cultural rationalities. To enable such participation, efforts beyond public meetings and hearings would be needed, including public advisory committees, citizen juries, negotiations, and facilitated mediation. These more intensive public participation efforts would help put stakeholders into the central role envisioned in the risk-informed process. Another important factor would be to have an even playing field among various stakeholders so that citizen groups have as much visibility and influence as lobbyists. Facilitated discussions among public stakeholders and government officials would point out differing viewpoints related to cost-benefit concerns, safety, credibility of the site management, and degrees of trust in the overall regulatory system. While perhaps time-consuming, discussions on these important issues could bring more transparency to, and trust in, the LAW decision-making process. Because a risk-informed system is simpler than the patchwork system currently in place, it would allow for better public understanding of the whole LAW process, not just the disposal end of it. People would be able to understand which activities generate LAW, why the waste is generated, and the benefits the public derives (if any) from these activities. It also would make it easier to explain how this process places a high priority on public safety. Being able to understand a simplified risk-informed LAW process could also allow public stakeholders to evaluate for themselves other options for LAW disposal and the relative costs of each. For example, having such an ability would be important for the question of whether slightly contaminated metals might be allowed to reenter commerce (Chen and Moeller, 2003). Being aware of and understanding the risks involved

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Improving the Regulation and Management of Low-Activity Radioactive Wastes with “release, recycle, refabrication and reuse in a host of unlabeled consumer products” could help individuals better evaluate safety concerns (Johnsrud, 2005). If a risk-informed process is to work effectively, members of both the affected and the interested publics must play active and involved roles. They have a responsibility to become and remain informed about the complex issues involved in LAW management by going to town meetings, reading fact sheets, and reviewing websites. For example, for WIPP recertification activities, EPA recommends that members of the public regularly check its WIPP website and enroll for e-mail alerts about meeting announcements, new information, and other news. On the WIPP website, EPA has a section called “Radiation in the News” with links to articles that citizens could use to stay informed not only about WIPP but also about many other nuclear issues (EPA, 2005a). Besides becoming informed, citizens need to communicate their concerns from the beginning of the process to government and nuclear industry personnel. EPA and other government agencies invite calls, e-mails, or faxes to staff members with any questions and comments and urge that the public be aware of the time periods available for public comments. People can also provide input at public meetings or invite government officials to attend meetings of local clubs or groups. Throughout the risk-informed decision-making process, public stakeholders should keep clear lines of communication open and actively serve as constructive partners. Local governments, too, have significant responsibilities to their constituents to make sure that both they and their citizens play a central role in a risk-informed process, as was done in Oskarshamn, Sweden. Too often, organized national or state environmental or citizen groups are the only voices representing public stakeholders in nuclear waste issues. While these national groups make valuable contributions to the risk “conversation,” local voices also need to be heard and encouraged. Both interested and affected publics need to be active and central partners in a risk-informed decision process. CONCLUSIONS Government agencies, nuclear waste managers, and public stakeholders all play an important role in effectively implementing risk-informed processes for managing and regulating LAW. As outlined in this chapter, such a process would offer advantages to each participant in the risk conversation and make it easier for participants to have a less acrimonious, even fruitful partnership. Because of its stakeholder centrality, a risk-informed decision process could help create more public confidence

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Improving the Regulation and Management of Low-Activity Radioactive Wastes not only in the process but also in the government agency and waste management personnel making radiation risk decisions. Because the process is transparent, understandable, and guarantees that a variety of views will be heard and evaluated, implementing a risk-informed decision process would be an important step in building public trust in the LAW regulatory process.